Citation Nr: 0432053
Decision Date: 12/03/04 Archive Date: 12/14/04
DOCKET NO. 00-12 207A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Denver,
Colorado
THE ISSUES
1. Entitlement to service connection for a back disorder.
2. Entitlement to service connection for a skin disorder of
the hands and feet.
3. Entitlement to service connection for a neck disorder.
REPRESENTATION
Appellant represented by: Colorado Division of Veterans
Affairs
ATTORNEY FOR THE BOARD
Nancy Rippel, Counsel
INTRODUCTION
The veteran served on active duty from July 1976 to January
1982 and from November 1990 to February 1991. His claim
comes to the Board of Veterans' Appeals (Board) on appeal
from March 1997 and July 1999 rating decisions of the Denver,
Colorado, Department of Veterans Affairs (VA) Regional Office
(RO).
FINDINGS OF FACT
1. A back disorder did not have its onset during active
service or result from disease or injury in service.
2. A skin disorder of the hands and feet did not have its
onset during active service or result from disease or injury
in service.
3. A neck disorder did not have its onset during active
service or result from disease or injury in service.
CONCLUSIONS OF LAW
1. The veteran is not entitled to service connection for a
back disorder. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137 (West
2002); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2004).
2. The veteran is not entitled to service connection for a
skin disorder of the hands and feet. 38 U.S.C.A. §§ 1110,
1131 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2004).
3. The veteran is not entitled to service connection for a
neck disorder. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137 (West
2002); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duty to notify and assist
VA must inform the claimant of any information and evidence
not of record (1) that is necessary to substantiate the
claim, (2) that VA will seek to provide, and (3) that the
claimant is expected to provide. In what can be considered a
fourth element of the requisite notice, VA must "also
request that the claimant provide any evidence in the
claimant's possession that pertains to the claim." 38
C.F.R. § 3.159(b)(1); see 38 U.S.C.A. § 5103A(g).
VA has satisfied its duty to notify by means of a letter from
the RO to the veteran in September 2001. He was told what
was required for his service connection claims and of his and
VA's respective responsibilities in terms of obtaining
information and evidence. He was also asked to submit
evidence to the RO as soon as possible. In September 2002,
he requested that records from the VA medical center in
Pueblo, Colorado, be requested. Those were requested and
received just prior to that request and are a part of the
record. In February 2004, in response to a supplemental
statement of the case, the veteran indicated that he was
waiving the additional time available for him to submit
evidence and that he wanted his case decided on the evidence
of record. Thus, the Board finds the veteran has nothing
more to submit in this matter.
The September 2001 letter was not mailed to the appellant
prior to the initial RO adjudication of his claims. In fact,
in the September 2001 letter the RO informed the veteran that
it was readjudicating his claim denied in July 1999 and
currently on appeal because of the recent passage of the
VCAA. Assuming for the sake of argument that pre-decision
notice is required, any defect in this regard is harmless
error. See 38 U.S.C.A. § 7261(b)(2) (West 2002). The
appellant did not provide any additional evidence in response
to the letters that was not fully considered by the RO in the
post-July 1999 readjudication in June 2002, the statement of
the case (SOC) issued in October 2002 or the supplemental
statement of the case (SSOC) issued in January 2004. There
is simply no indication that disposition of his claims would
have been different had he received pre-adjudicatory notice
pursuant to 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b).
Therefore, adequate notice to the veteran, as required by 38
U.S.C.A. § 5103(a), was provided. See 38 U.S.C.A.
§ 7261(b)(2) (West 2002).
VA must also make reasonable efforts to assist the claimant
in obtaining evidence necessary to substantiate the claim for
the benefit sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claim.
38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d)
(2004). All identified, pertinent evidence, including VA and
private medical records as discussed below, has been obtained
and associated with the claims file. There is no indication
of any relevant records that the RO has failed to obtain.
Assistance shall also include providing a medical examination
or obtaining a medical opinion when such an examination or
opinion is necessary to make a decision on the claim.
38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4)
(2004). The veteran underwent a VA examination in April
2002. Additional examination and/or opinion is not warranted
in this case because the evidentiary record does not contain
competent evidence indicating that the claimed disabilities
or symptoms may be associated with an established event,
injury, or disease in service. See 38 C.F.R.
§ 3.159(c)(4)(A), (C); Wells v. Principi, 326 F.3d 1381 (Fed.
Cir. 2003); Charles v. Principi, 16 Vet. App. 370 (2002).
Accordingly, having determined that the duty to notify and
assist has been satisfied to the extent possible, the Board
turns to an evaluation of the veteran's claims.
II. Service connection Claims
Service connection means that the facts, shown by evidence,
establish that a particular injury or disease resulting in
disability was incurred in the line of duty in the active
military service or, if pre-existing such service, was
aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West
2002); 38 C.F.R. §§ 3.303(a), 3.304 (2004).
In order to prevail on the issue of service connection for
any particular disability, there must be medical evidence of
a current disability; medical evidence, or in certain
circumstances, lay evidence of in-service occurrence or
aggravation of a disease or injury; and medical evidence of a
nexus between an in-service injury or disease and the current
disability. See Hickson v. West, 12 Vet. App. 247, 253
(1999); see also Pond v. West, 12 Vet App. 341, 346 (1999).
In addition, service connection for certain chronic diseases,
including arthritis, may be established based upon a legal
"presumption" by showing that it manifested itself to a
degree of 10 percent or more within one year from the date of
separation from service. 38 U.S.C.A. §§ 1112, 1137 (West
2002); 38 C.F.R. §§ 3.307, 3.309 (2004).
In determining whether service connection is warranted for a
disability, VA is responsible for determining whether the
evidence supports the claim or is in relative equipoise, with
the veteran prevailing in either event, or whether a
preponderance of the evidence is against the claim, in which
case the claim is denied. Gilbert v. Derwinski, 1 Vet. App.
49 (1990); VCAA.
The Board must assess the credibility and weight of all the
evidence, including the medical evidence, to determine its
probative value, accounting for evidence which it finds to be
persuasive or unpersuasive, and providing reasons for
rejecting any evidence favorable to the appellant. See
Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v.
Derwinski, 2 Vet. App. 614, 618 (1992; Hatlestad v.
Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1
Vet. App. 49 (1990).
Service medical records show no complaints or findings
related to the back or skin of the hands and feet. X-rays of
the cervical spine in July 1977 were normal. The veteran was
treated on approximately four occasions in October 1981 for
neck, deltoid, and trapezius strain. In November 1981, the
neck pain was noted to have resolved. In October 1980, he
was treated for contact dermatitis of the face. In September
and December 1981, the veteran was treated for seborrheic
dermatitis of the face and scalp. In his November 1981
report of physical examination for separation, no skin, back,
or neck abnormalities were noted.
During his other period of service, no pre-existing skin,
neck, or back problems were reported by the veteran. He
sought medical attention in December 1990 for a contusion to
the jaw which had occurred when he ran into his bunker. The
diagnosis was jaw contusion, treated with Motrin. A medical
certificate dated in April 1991 shows that the veteran
reported no medical defect disease or disability other than a
right ankle disability. A periodic physical in April 1995
revealed normal clinical evaluation of the spine and skin.
The veteran filed a claim for service connection for a
disorder of the cervical spine in September 1996. A report
of VA examination in 1996 shows no complaints with respect to
the neck, back, or skin. That claim was denied by the RO in
March 1997. He disagreed with the denial of that claim in
March 1998 and filed the claim of service connection for the
skin disorder and the back disorder in February 1999. Post-
service medical records include those from the VA medical
centers (VAMCs) in the Colorado VA Health Care System,
including Pueblo, Colorado, Denver and VA Fort Lyon VAMC ,
and various private treatment records. In March 1999, tinea
pedis was diagnosed.
A fully favorable decision rendered in August 1999 by the
Social Security Administration Office of Hearings and Appeals
reflects that the veteran was found unable to work due to a
combination of severe impairments, including cervical spine
fusion. A medical evaluation report supporting that claim
from Ken A. Stone, M.D., notes that the veteran injured his
neck and developed neck pain after shoveling snow in his job
as a maintenance worker with the post office in January 1996.
MRI showed pre-existing degenerative cervical disc disease as
well as stenosis due to bulging. Diagnosis included work
related left cervical trapezius strain with chronic pain and
the pre-existing cervical stenosis and radiculopathy. He
underwent cervical laminectomy at C5-6-7 in July 1997.
In April 2002, the veteran underwent VA examination. The
examiner noted the veteran reported injuring his jaw in
December 1990 when he dove into a bunker and hit his jaw on
the bunker. The veteran also reported neck pain and
headaches following the incident. He stated that in the
1990s, a few years later, he began having rashes on the
bottom of his feet which would crack and bleed. He also
described a history of feeling tremors in the arms and
constant fatigue. The veteran also reported chronic problems
with the low back. He walked into the examination with a
cane. VA treatment records show that the veteran has been
diagnosed as having lower lumbar bulging disks with chronic
low back pain.
A. Back Disorder
Medical records during service fail to disclose any
complaints or objective findings of a back disorder.
Contrary to the veteran's contention that his back disorder
is related to service, there is no competent, medical
evidence relating the current disability to service.
Regarding the VA outpatient treatment records, these are
negative for findings or opinions of a relationship between
the currently diagnosed back disorder, i.e., lower lumbar
bulging disks with chronic low back pain, first demonstrated
several years after service, and any in-service disease or
injury. The only evidence of such a relationship is the
veteran's contentions. The actual medical evidence does not
support the claim. While the veteran is competent to
describe the symptoms that he experienced, his statements are
without significant probative value in regard to the issue at
hand, as the veteran has not been shown to possess the
medical training or expertise needed to render a competent
opinion as to diagnosis or medical causation. See Routen v.
Brown, 10 Vet. App. 183, 186 (1997), aff'd, 142 F.3d 1434
(Fed. Cir. 1988); YT v. Brown, 9 Vet. App. 195, 201 (1996);
Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Thus,
the veteran's personal belief that he has a current back
disorder related to service cannot serve to prove that the
disability had its onset during active service or is related
to any in-service disease or injury.
In the absence of medical evidence establishing a
relationship between the current disability and active
service, the preponderance of the evidence is against the
claim for service connection for a back disorder. The
benefit of the doubt has been considered, but there is not an
approximate balance of positive and negative evidence
regarding the merits of the issue. That doctrine is not for
application in this case because the preponderance of the
evidence is against the veteran's claim. See Gilbert v.
Derwinski, 1 Vet. App. at 55
B. Skin Disorder of the Hands and Feet
There is no evidence of a skin disorder of the hands and feet
in service, and the veteran has reported that his skin
disorder was first manifest after his separation from
service. Indeed, a periodic physical in April 1995 revealed
normal clinical evaluation of the skin. Nor is there
competent medical evidence linking a current skin disorder of
the hands and feet, diagnosed as tinea pedis in March 1999,
to service. The veteran reported such a problem to the
examiner in April 2002, yet no diagnosis was made based on
the medical examination. Regarding the VA outpatient
treatment records, these are negative for findings or
opinions of a relationship between any current skin disease
of the hands and feet and service.
Contrary to the veteran's contention that he has a skin
disorder of the hands and feet that is related to his
service, again, there is no competent, medical evidence of a
relationship between a current disability and service. The
only evidence relating the current condition to service is
the veteran's contentions. The actual medical evidence does
not support the claim. While the veteran is competent to
describe the symptoms that he experienced, his statements are
without significant probative value in regard to the issue at
hand, as the veteran has not been shown to possess the
medical training or expertise needed to render a competent
opinion as to diagnosis or medical causation. See Routen v.
Brown, 10 Vet. App. 183, 186 (1997), aff'd, 142 F.3d 1434
(Fed. Cir. 1988); YT v. Brown, 9 Vet. App. 195, 201 (1996);
Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992).
In the absence of medical evidence establishing that the
current skin disability is related to active service, the
preponderance of the evidence is against the claim for
service connection for a skin disorder of the hands and feet.
The benefit of the doubt has been considered, but there is
not an approximate balance of positive and negative evidence
regarding the merits of the issue. That doctrine is not for
application in this case because the preponderance of the
evidence is against the veteran's claim. See Gilbert v.
Derwinski, 1 Vet. App. at 55
C. Neck disorder
During service, the veteran was treated for neck, deltoid,
and trapezius strain October 1981, which was noted to have
resolved. In December 1990, he was treated for a contusion
to the jaw after he ran into his bunker and struck his jaw.
The diagnosis was jaw contusion. A periodic physical in
April 1995 revealed normal clinical evaluation of the spine.
There is no competent evidence of record linking a current
neck disorder, including current bulging disc C5, C6-7, with
stenosis, to any in-service disease or injury. The veteran
reported cervical disc and spine problems to the examiner in
April 2002, yet no diagnosis was made based on the medical
examination. Regarding the VA outpatient treatment records,
these are negative for findings or opinions of a relationship
between any current neck disorder and service.
While a review of the record shows that a cervical disorder
exists following service, with the earliest documented
manifestation of such a disorder being approximately four
years following service, there is no competent medical
evidence which demonstrates that a cervical spine disorder is
related to service or to neck strain in service noted in 1981
or any injury to the jaw in 1990. Moreover, intervening
records show injury reported in 1996, on the job at the post
office. The service medical records do not show a cervical
spine disorder, the diagnoses occurred 4 years after service,
(including outside the presumptive period for arthritis) and
no health care provider has opined that there is a
relationship between any current cervical spine disorder and
service.
The only evidence of a relationship between the service and
current cervical spine disorder, first documented four years
following service, is the veteran's contentions. The actual
medical evidence is against the claim. While the veteran is
competent to describe the symptoms that he experienced, his
statements are without significant probative value in regard
to the issue at hand, as the veteran has not been shown to
possess the medical training or expertise needed to render a
competent opinion as to diagnosis or medical causation. See
Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd, 142
F.3d 1434 (Fed. Cir. 1988); YT v. Brown, 9 Vet. App. 195, 201
(1996); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95
(1992).
Thus, the veteran's personal belief that he has a current
disability, and that a relationship exists between the
disability, first manifested years after service, and his
service, cannot serve to prove that the disability for which
the veteran claims service connection was incurred in or
aggravated by service. All of the probative medical evidence
is against his theory. The examiner who noted the history of
injury declined to make a connection between the cervical
disorder and noted complaints in service. In the absence of
medical evidence establishing a relationship between a
cervical spine disorder and service, the preponderance of the
evidence is against the claim for service connection. The
benefit of the doubt has been considered, but there is not an
approximate balance of positive and negative evidence
regarding the merits of the issue. That doctrine is not for
application in this case because the preponderance of the
evidence is against the veteran's claim. See Gilbert v.
Derwinski, 1 Vet. App. at 55.
Finally, as there are recognized clinical diagnoses for he
veteran's neck disorder, back disorder, and a skin disorder
of the feet, they are not, by definition, manifestations of
undiagnosed illness. Accordingly, to the extent that the
claims are for undiagnosed illnesses, they are ones as to
which there is no legal entitlement. Cf. 38 U.S.C.A. § 1117
(West 2002); 38 C.F.R. § 3.317 (2004); see Sabonis v. Brown,
6 Vet. App. 426 (1994).
ORDER
Service connection for a back disorder is denied.
Service connection for a skin disorder of the hands and feet
is denied.
Service connection for a neck disorder is denied.
____________________________________________
P. M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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